Regina (Ali) v Secretary of State for the Home Department (Liberty intervening)

[2015] UKSC 68

The requirement in the Immigration Rules for a foreign spouse or partner of a British citizen, who was not a national of one of a number of specified majority English-speaking countries and who did not qualify for certain other exemptions, to produce a certificate of knowledge of the English language to a prescribed standard prior before entry, was lawful, albeit the suitability of the guidance issued in relation to the operation of that rule was open to question.

The Supreme Court so held when stating that it would hear further argument as to whether the guidance should be the subject of a declaration but otherwise dismissing appeals by the claimants, Saiqa Bibi and Saffana Abdull Mohammed Ali, against the order of the Court of Appeal (Maurice Kay and Toulson LJJ, Sir David Keene dissenting) [2013] EWCA Civ 322; [2014] 1 WLR 208 whereby it had affirmed the decision of Beatson J in the Administrative Court of the Queen’s Bench Division (sub nom R (Chapti) v Secretary of State for the Home Department (Liberty intervening) [2011] EWHC 3370 (Admin); [2012] 2 All ER 653) to dismiss their claims for judicial review of a decision by the Secretary of State for the Home Department in 2010 to amend paragraph 281 of the Statement of Changes in Immigration Rules (1994) (HC 395) so as to introduce the pre-entry test requirement (“the rule”), the relevant provisions of which had been subsequently remade as paragraphs E–ECP 4.1 and E–ECP 4.2 of Appendix FM to the Rules, as inserted. The rule allowed for, inter alia, an “exceptional circumstances” exemption but the published guidance on the application of the rule stated that the expectation was that use of the exemption would be rare, and that neither financial reasons (for not being able to study or take the test) nor limited literacy or education would be accepted as exceptional circumstances.

The claimants were two British citizens who had each married a foreign national, resident in Pakistan and Yemen respectively, who could not speak English. Neither husband had applied for entry clearance, each believing that he would be unable to satisfy the rule. In the case of the husband in Pakistan, it was claimed that the large distance he would have to travel to the nearest place of tuition, together with the cost involved, made study impractical. There was no test centre in Yemen. The claimants had argued that it followed that the rule was, inter alia, an unjustifiable interference with their right to respect for private and family life under article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

BARONESS HALE OF RICHMOND DPSC (with whom LORD WILSON JSC agreed) said that the rule was meant to assist overseas persons’ integration into British society at an early stage and as such had a legitimate aim sufficiently important to justify interfering with the fundamental right to respect for the family life of their British-settled partners. There was a rational connection between the measure and the aim which it sought to achieve. While it might be doubted that requiring a very basic level of spoken English before entry made a great contribution to the overall aim of promoting integration, it could not be said that it made no contribution towards it at all. The real question was whether a fair balance had been struck between the rights of the individual and the interests of the community. There would be some applicants who either already had some command of English or who could arrange appropriate tuition without much difficulty, and who would not find it difficult to attend a test centre. For them the test would not present such an obstacle that it could be termed an unjustified interference with their partners’ article 8 rights. However there would be applicants without a command of the English language and for whom accessing tuition and then a test centre would be difficult or prohibitively expensive and whose partners were thus faced with indefinite separation, either from their chosen partner in life, or from their own country, their family, friends and employment here. However, the problem lay not so much in the rule itself, but in the present guidance which offered little hope through the “exceptional circumstances” exception. The appropriate solution would be to recast the guidance so that anyone for whom it was genuinely impracticable to meet the requirement could predictably be granted an exemption. It would not be right to strike down the rule itself or declare it invalid, since it would not be an unjustified interference with article 8 rights in all cases and it was capable of being operated in a manner which was compatible with the Convention rights. Consideration would be given, after submissions by the parties, as to whether it was appropriate to make a declaration that the operation of the rule through the current guidance would in certain circumstances be incompatible with the Convention rights.